The 1989 California court case People v Freeman (reviewed by SCOTUS Justice O’Conner as Freeman v California) held that in the case of paying people to film them having sex, First Amendment concerns trumped the normal prohibitions against paying people to have sex. After Freeman, producers and performers in California could make sexually explicit videos without fear of being charged with pandering or prostitution.

Through out the late 70s and early 80s, as distribution of sexually explicit film moved from theaters to home video, producers increasingly moved from film as an acquisition medium to BetacamSP, but out of habit and fear of obscenity prosecution largely retained narrative feature-film style creative conceits. But in 1989 John Stagliano release The Adventures of Buttman, a production that would embrace the look and feel of video on its terms and set a creative template (gonzo) for the production of pornography that would rapidly come to dominate the industry.

In the 1990s, rapid advances in digital cameras and desktop computer editing would lower the cost of shooting and finishing a film that consisted mostly of a series of semi-improvisational sex acts by an order of magnitude or more, while at the same time, Bill Clinton’s Justice Department, headed by his Attorney General Janet Reno had massively de-prioritized obscenity prosecutions.

By the late 90s the combination of the above had give rise to what many porn fans regarded as a new golden age. Gone were the wearying pretenses to making a “real movie”, and in their place was a proliferation of thousands of titles covering nearly every conceivable interest (provided your interested was in seeing depictions whose narrative “conceit” consisted of “these are people paid to have sex having sex.”) Barely legal teens, grannies, trannies, and anyone else, engaged in every conceivable sex act, all recorded in perfect digital clarity (provided your definition of clarity was whatever the latest prosumer DV camcorder was capable of rendering.)

(It was this era that gave rise to the unsourcable but quoted in the New York Times and everywhere else, “Porn is a 10,000 title a year, $12 billion year business.” Human being are notoriously bad with large numbers, especially if they have no incentive to take out a calculator and ask “Does this even make sense?”)

Only one thing was missing to completely spoil the party: The complete collapse in the cost of replicating, marketing and distributing content. And that would be provided by the internet.

At first the internet offered the promise of even greater revenues, a way that customers could be reached without asking them to go to the cinderblock adult video emporium at the edge of town, or going into the cordoned off “adult” section of the local video rental store. The internet also offered distribution outlets for material too niche for the 1500 piece DVD model, or regarded as too much an invitation to obscenity prosecution by risk-averse established distributors (BDSM, urine, fisting, etc.)

The problem is these benefits were available to anyone with a BestBuy credit card and a high-speed internet connection, and the social and business realities of how photographic depictions of sexuality are treated by law and commerce almost seems intentionally designed to reward people who lower their creative and ethical standards, while punishing those who try to observe normal standards of behavior for how their work is made and marketed, from everything to health and safety concerns for those who appear on camera, to search engine optimization schemes, to pop-ups and redirects, to spam e-mail, to something as simply putting truthful information on website come-ons.

Simply put, the lower the barriers to entry, the more people who have nothing to lose that will throw their hat in the ring, creating downward pressure on behavior, and lowering the signal to noise ratio to a point that the entire market space is functionally equivalent to spam.

It’s not that there aren’t exceptions. San Francisco’s Kink.com was early to the game, offering BDSM oriented content via the internet at a time when traditional distribution channels regarded bondage and other non-consensual themed sex-play as a one-way ticket to an obscenity conviction. (There’s that all important social arbitrage again. See the previous post, The MPAA Took My Baby Away!)

But the fact remains that ten years later, Kink.com, a big internet success story, is one $16 million semi-derelict building, a staff of less than 100, and maybe several hundred freelance models who each do a few days work a year. That is a personal success story for Peter Acworth, Kink.com’s founder, but it’s not a game changer in the way Amazon changed retailing, or Google changed search, or even the way that Zappo.com (with over 1000 employees) changed buying shoes.

The more typical arc is what has happened to Steve Hirsh’s Vivid video under the onslaught of ever lowering barriers to entry.

During the late 90s through 2005, Hirsch was able to maintain mandatory use of condoms policy as insurance against the vagaries of asking strangers to have sex in the production of his companies films. Hirsch’s policy stood as a credit to the brand in the wake of the 2004 HIV outbreak, where three women contracted HIV after having sex with an infected male performer who passed through the industry’s testing protocols undetected. But by 2006, the policy was quietly abandoned.

For years, Vivid was also well known for its lavish (by adult standards) feature productions. But in 2009 Hirsch grabbed a little ink by announcing his company would focus on producing more, less expensive, shorter sex scenes intended to be viewed online. Under the onslaught of the internet, Vivid, once a brand with a sharp differentiation from most other producers of sexual explicit content — both in terms of creative approach and talent health consideration — is now functionally equivalent to any other gonzo studio.

Up next: II)D) “Do you want to be put in the same category as Alfred Kinsey, Max Hardcore, or Catherine Briellat?”: The limits of sexual expression in an algorithmic world.

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About The Intent to Arouse

In a world that seems awash in sexualized imagery, why is it that so little of this imagery speaks to the common pleasurable reality of sex? Award-winning filmmaker Tony Comstock takes us into the legal and business realities that shape and too often warp the sexual imagery we see. Drawing on examples from Hollywood’s history [...]more →